STATE OF NEW JERSEY v. KIMANIE STEWART

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6521-06T46521-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KIMANIE STEWART,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 16, 2009 - Decided

Before Judges Axelrad, Sapp-Peterson and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-06-00735.

Yvonne Smith Segars, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury convicted defendant Kimanie Stewart of second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b), third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). Defendant was sentenced on the reckless manslaughter conviction to a ten-year term of imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with the weapons convictions merged into that conviction. Defendant appeals from his conviction and sentence. We affirm.

The victim, Jose Emilio Collado, was hosting a party in a Paterson garage on January 25, 2004. A group of uninvited guests associated with a gang known as East 19th Street Boys United ("EBU"), including defendant and William Robles, arrived around midnight. Robles started shouting, "EBU is in the house." Collado responded by making a hand sign that indicated he was with the "Fourth Avenue" gang. Defendant and Robles flashed their EBU hand signs. Collado came face-to-face with defendant and Robles while other members of the EBU group "bunched up" behind defendant. Fighting broke out, initially between Collado and Robles. Then, defendant stabbed Collado once in the chest. Collado uttered that he "got stabbed." Fighting continued among other people there. Collado was taken to the hospital where he died as a result of a stab wound received during the fight.

Defendant made several statements in which he admitted stabbing Collado. The first was made to George Garcia. Garcia was throwing another party visited by defendant and Robles that evening and later accompanied defendant to a pool hall. Defendant told him that he had stabbed someone and gave him the knife. Garcia threw the knife over the fence outside the pool hall. Defendant later told both Garcia's mother, Felicia Smith, and Sandra Morales, the mother of his child, that he had stabbed someone. At defendant's request, Smith took him to the bus station. Defendant planned to travel to Florida but returned to Smith's home after the bus had problems en route.

On January 30, 2004, police went to Smith's home, seeking to question defendant. They found him hiding in a closet. The police took defendant, Smith, Garcia, and others to headquarters. Both Smith and Morales admitted that they had withheld information in prior statements to police. Smith disclosed that defendant had confided in her regarding the stabbing. Similarly, when Morales was interviewed a second time, she revealed that defendant had told her that he stabbed someone. Garcia gave a statement to police and agreed to show the police where he had thrown the knife. However, the ground was covered with snow and the police were unable to locate the knife at that time. The knife was ultimately recovered in March 2004.

Defendant was advised of his Miranda rights and questioned by Detective Scott Heath of the Paterson Police Department. He did not make any statement admitting his guilt in the stabbing. However, because the State intended to present evidence regarding his reactions to statements made during his interrogation, a Miranda hearing was conducted. The trial court found that the defendant's responses were admissible.

Defendant acknowledged attending Collado's party, Garcia's home, and a pool hall on the night of the stabbing but denied stabbing anyone. He also disclosed that he had boarded a bus to Florida but returned to Paterson.

Another detective, Carmine Pelosi, told defendant that Garcia had gone to the pool hall with the police and shown them where he threw the knife. He told defendant, falsely, that the police had recovered the knife. Defendant asked, "You really found it? You found the knife?" Then, he asked Detective Pelosi to describe the knife. Detective Pelosi repeated the description given to him by Garcia: a black-handled folding knife. Defendant's demeanor changed at this point. He took a deep breath, moved forward in his chair and then leaned back and sighed. Looking down, he shook his head, but said nothing. The interview ended when defendant asked to speak to his mother.

Clothing taken from defendant at the time of his arrest was subjected to forensic testing, which detected the presence of human blood on his sweatpants and jacket. However, it could not be determined whose blood was on the clothing.

The weapons convictions were merged with the manslaughter conviction for sentencing. Defendant was sentenced to ten years incarceration for the reckless manslaughter conviction and, pursuant to NERA, was required to serve eighty-five percent of that sentence before being eligible for parole. The court ordered that the sentence run consecutive to a sentence defendant was serving for two unrelated aggravated assaults.

Defendant raises the following issues on appeal:

POINT I

THE DEFENSE MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED BECAUSE THE MISCONDUCT IN THE PROSECUTOR'S SUMMATION WAS SUFFICIENTLY EGREGIOUS THAT IT DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

A. THE PROSECUTOR'S SUMMATION IMPROPERLY BOLSTERED THE TESTIMONY OF THREE CRUCIAL STATE'S WITNESSES AND IMPERMISSIBLY SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT BY REFERRING TO INFORMATION OUTSIDE THE TRIAL EVIDENCE.

B. THE PROSECUTOR'S SUMMATION IMPROPERLY IMPASSIONED THE JURY BY TELLING THEM THEY WERE "THE LAST LINE OF DEFENSE" FOR THE VICTIM.

C. THE PROSECUTOR'S SUMMATION IMPROPERLY DENIGRATED THE ROLE OF THE DEFENSE.

D. THE PROSECUTOR EFFECTIVELY SIMULTANEOUSLY TESTIFIED FOR THE DEFENDANT AND COMMENTED ON THE DEFENDANT'S FAILURE TO TESTIFY IN HIS SUMMATION BY USING A "ROLE-PLAYING" TECHNIQUE, IN VIOLATION OF THE DEFENDANT'S FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION.

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING INFLAMMATORY AND UNDULY PREJUDICIAL PHOTOGRAPHS OF THE VICTIM FOLLOWING AN AUTOPSY.

POINT III

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AND IN ADMITTING CORRESPONDING TESTIMONY AT TRIAL BY A POLICE OFFICER AS TO THE DEFENDANT'S DEMEANOR AND RESPONSE TO QUESTIONS DURING POLICE INTERROGATION.

POINT IV

THE CONSECUTIVE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE AND IS AN ABUSE OF THE TRIAL COURT'S DISCRETION.

We first address defendant's argument that a mistrial should have been granted based upon comments made during the prosecutor's summation. Defendant contends that the prosecutor committed misconduct by improperly bolstering the credibility of three witnesses, by improperly denigrating the role of the defense, by engaging in role-playing in delivering his summation and by improperly appealing to the jury to be "the last line of defense" for the victim. Aside from the last of these contentions, this argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

During his summation, the prosecutor argued to the jury that they were "the last line of defense for Jose Amelio [Collado] because he couldn't defend himself against the sneak attack of this man in that dark garage that night." He also stated,

Tell this man [the defendant] on behalf of Jose Collado, 'Yes, you did possess a knife.' With your verdict you can tell him, 'You did possess a knife. You used that knife against Jose Amelio Collado. And that you took his life with that knife. You murdered him. It was your intention.'

By asking the jury to act in defense of the victim, the prosecutor improperly sought to divert the jury from its obligation to dispassionately decide the case based upon the evidence, State v. Rose, 112 N.J. 454, 520 (1988), and promoted "a sense of partisanship with the jury that is incompatible with the jury's function." State v. Neal, 361 N.J. Super. 522, 537 (App. Div. 2003); State v. Goode, 278 N.J. Super. 85, 89 (App. Div. 1994).

Whether to grant a motion for a mistrial based upon such misconduct rests within the sound discretion of the trial court and should not be disturbed unless there is a "clear showing that the court abused its discretion or that the defendant suffered actual harm." State v. LaBrutto, 114 N.J. 187, 207 (1989). See also State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Although we disagree with the trial court's conclusion that the comments complained of were proper, we find no error in the denial of the motion for a mistrial. Even when the prosecutor has engaged in improper conduct, such motions should be granted "only where manifest injustice would otherwise result . . . ." Labrutto, supra, 114 N.J. at 207. When the grounds for the mistrial arise from an allegation of prosecutorial misconduct, the standard for reversal "requires an evaluation of the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999). For a conviction to be reversed, the conduct must be "so egregious as to deprive defendant of a fair trial." Ibid. See also State v. Echols, 199 N.J. 344, 360 (2009).

The evidence of defendant's guilt here was strong. He confided his guilt to three persons close to him, including the mother of his child. Although he did not admit his guilt during interrogation, his response to the information that the knife had been recovered with Garcia's help provided corroboration for Garcia's statement that defendant admitted to the stabbing and turned the knife over to him for disposal. Further, this was not a case in which an emotional appeal was likely to displace a dispassionate consideration of the evidence. The fatal stabbing occurred during an altercation following the flashing of gang signs. Aside from the victim's youth, the circumstances presented an obvious appeal to the jury's emotions. Within this context, the prosecutor's comments were not sufficiently egregious to substantially prejudice the defendant's "right to have a jury fairly evaluate the merits of his . . . defense." State v. Rodriguez, 365 N.J. Super. 38, 47 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004).

Defendant's challenges to the admission of two photographs into evidence, the denial of his suppression motion and his sentence lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments.

At trial, defense counsel objected to the introduction of two photographs, S-100 and S-101, on the grounds that they were "gruesome and inflammatory." Aside from the fact that these were 8x10 inch blow-ups of smaller photographs, no further explanation was provided as to why these photographs were gruesome or inflammatory. The trial court described the photographs as close-ups that showed the stab wound as well as a sutured opening made by the doctor during the autopsy that would be explained to the jury. The trial court concluded that, in light of the State's burden to prove beyond a reasonable doubt the cause of death and how the death was inflicted, the probative value outweighed any prejudice.

The court's decision to admit the two photographs into evidence is entitled to our deference in the absence of an abuse of discretion that results in a manifest denial of justice. State v. Moore, 113 N.J. 239, 295 (1988). The record fails to show that the photographs were "gruesome" or inflammatory in any way but merely depicted the wound suffered by the victim. This is insufficient to show an abuse of discretion.

Defendant's argument regarding the denial of his motion to suppress must also fail. When reviewing a motion to suppress, an appellate court "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record,'" and give deference to its credibility findings. State v. M.A., 402 N.J. Super. 353, 364 (App. Div. 2008)(quoting State v. Elders, 192 N.J. 224, 243 (2007)); State v. Locurto, 157 N.J. 463, 474 (1999). It is undisputed that defendant received Miranda warnings before any questioning occurred and that the interview ceased when he asked to speak to his mother. Defendant did not make a statement directly incriminating himself during the interview. The trial court made specific findings based upon the credible evidence which amply support its decision to admit the evidence of defendant's responses to interrogation.

The thrust of defendant's appeal regarding his sentence is the argument that the trial court abused its discretion in imposing a consecutive sentence and that, as a result, the sentence was manifestly excessive. Defendant stabbed the victim while released on bail and pending sentence on two prior aggravated assaults that had occurred months earlier. He was sentenced to a five-year period of incarceration with an eighty-five percent parole disqualifier for those charges. The trial court correctly applied the factors set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), in determining that a consecutive sentence was appropriate here.

In imposing the ten-year sentence, the court found that the following aggravating factors applied: the risk that the defendant will commit another offense, N.J.S.A. 2C:44-1a(2), the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44-1a(6) and the need to deter the defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). The court found no mitigating factors. As these findings "are supported by competent credible evidence in the record," the sentence is appropriately affirmed. State v. O'Donnell, 117 N.J. 210, 215 (1989).

Affirmed.

Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed 2d 694, 707 (1966).

These photographs were not provided to this court as part of the appeal.

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A-6521-06T4

October 6, 2009